The Standing to Sue ObamaMembers should let Boehner take the lead against executive excess.June 15, 2014 5:48 p.m. ET

President Obama is setting a dangerous precedent by suspending his enforcement of laws on health care, immigration, drugs, banking and so much else, but the courts may soon be asked to throw a brushback pitch. That is, unless a rump group of backbenchers undermines the legal challenge.

Mr. Obama's practice of unilaterally waiving his duty to faithfully execute statutes has been abetted by a presumed lack of legal "standing" to contest his suspension. To the extent individuals have not suffered concrete injuries that the courts traditionally redress, he feels he can act without consequence to create whole-cloth regulatory regimes. This makes the inherent Article I powers of Congress irrelevant, with perhaps permanent damage to the separation of powers and political accountability. If Mr. Obama gets away with it, the next President probably will too.

President Barack Obama Associated Press

But Congress may yet have a way to challenge this usurpation in court. The Washington constitutional litigator David Rivkin and Florida International University law professor Elizabeth Price Foley have developed a legal theory that would allow for judicial review to resolve this dispute between the political branches on the merits. Members of Congress as individuals cannot sue as individuals over passing political disputes. But when the President is usurping core legislative powers, Congress as an institution can sue to vindicate this constitutional injury.

Short of impeachment, there is no other way for Congress to defend its rights, and the Rivkin-Foley case is narrow and limited—and should survive judicial scrutiny. The idea has secured the interest of the GOP leadership, which may soon authorize a House-led lawsuit.

The problem is that a handful of junior Members may move to pre-empt the House challenge with their own claim in a way that could undermine House leaders. As a legal matter, the formal imprimatur of Congress is important and serves as a limiting principle. Institutional challenges will be rare for only the gravest suspensions of law and keep sealed the Pandora's box that would be the endless deluge of ad hoc political lawsuits against the White House.

Backbench fervor may also get the better of legal precision. The Rivkin-Foley theory would itself set a precedent and depends on careful arguments. Mr. Rivkin was the legal innovator behind the challenge to ObamaCare's individual mandate and his ideas persuaded a majority of the Supreme Court, even if Chief Justice John Roberts ultimately got cold feet and called it a tax.

But that case was harmed in the lower courts—and in the court of public opinion—by sloppy reasoning from politically ambitious litigators. Rump litigation could interfere by casting doubt on this case too.

The courts have long turned back flailing suits from individual legislators, from attempts in the 1970s to police the conduct of the Vietnam war to more recent efforts by Dennis Kucinich and others over Iraq. But personal pique as much as conviction seems to be a motivation in this dispute. Some Members just don't like Speaker John Boehner and prefer to sabotage him at every turn, even in this case when he would be doing a public service by hazarding his own reputation and office.

More judges are pushing back against Mr. Obama's abuses when individuals with standing have sued, and the courts may be open to a larger challenge that resolves the dispute in a constitutionally peaceful way. But defending Congress's prerogatives requires Congress.

Charles Krauthammer made an excellent point last night when he said of this scandal: “Forty years ago Nixon was crucified by the press and forced to resign - partly over an 18-minute gap on one of his White House tapes. NOW - this administration is claiming they lost 26 MONTHS of e-mails from this woman at the center of the scandal" - and ONLY Fox News reported this story on Friday. Not a peep from any of the other major networks. Sickening.www.washingtontimes.com/news/2014/jun/15/curl-irs-scandal-gets-nixonian-the-18-minute-or-26/?page=all#pagebreak

As congressional investigators ponder how a computer crash caused two years of Lois Lerner’s emails to disappear, investigative journalist Sharyl Attkissonoutlined several questions lawmakers should be asking the Internal Revenue Service.

During Lerner’s tenure at the IRS, tea party groups applying for tax-exempt status routinely were subjected to additional scrutiny and delays in their applications. The IRS informed Congress last week that it had lost an unknown number of emails from Lerner.

Now, as congressional Republicans call on the Department of Justice to open an investigation into the computer crash, Attkisson, a Daily Signal senior independent contributor, explained exactly what information investigators should seek regarding Lerner’s missing emails:

Please provide a timeline of the crash and documentation covering when it was first discovered and by whom; when, how and by whom it was learned that materials were lost; the official documentation reporting the crash and federal data loss; documentation reflecting all attempts to recover the materials; and the remediation records documenting the fix. This material should include the names of all officials and technicians involved, as well as all internal communications about the matter.

Please provide all documents and emails that refer to the crash from the time that it happened through the IRS’ disclosure to Congress Friday that it had occurred.

Please provide the documents that show the computer crash and lost data were appropriately reported to the required entities including any contractor servicing the IRS. If the incident was not reported, please explain why.

Please provide a list summarizing what other data was irretrievably lost in the computer crash. If the loss involved any personal data, was the loss disclosed to those impacted? If not, why?

Please provide documentation reflecting any security analyses done to assess the impact of the crash and lost materials. If such analyses were not performed, why not?

Please provide documentation showing the steps taken to recover the material, and the names of all technicians who attempted the recovery.

Please explain why redundancies required for federal systems were either not used or were not effective in restoring the lost materials, and provide documentation showing how this shortfall has been remediated.

Please provide any documents reflecting an investigation into how the crash resulted in the irretrievable loss of federal data and what factors were found to be responsible for the existence of this situation.

I would also ask for those who discovered and reported the crash to testify under oath, as well as any officials who reported the materials as having been irretrievably lost.In testimony before the House Oversight and Government Reform Committee in March, IRS Commissioner John Koskinen told lawmakers agency emails “get taken off and stored in servers.” Yet the IRS said Lerner’s correspondence, sent between January 2009 and April 2011, is irretrievable.

Congressional investigators are working to determine whether Lerner acted alone or on orders handed down by the White House. House Ways and Means Chairman Dave Camp, R-Mich., said in a statement Friday the IRS’ loss of documents makes it more difficult for investigators to determine who, besides Lerner, was involved in the scandal.Lerner testified twice on Capitol Hill about the targeting, but invoked the Fifth Amendment both times. In May, the House voted to hold her in contempt for refusing to cooperate with investigations.

Lerner Emails (Really) GoneHow green! The IRS recycled former-IRS official Lois Lerner's computer hard drive, making it impossible to retrieve the lost emails that would undoubtedly be another smoking gun on the Tea Party targeting scandal. An IRS spokesman said, "We believe the standard IRS protocol was followed in 2011 for disposing of the broken hard drive. A bad hard drive, like other broken Information Technology equipment, is sent to a recycler as part of our regular process." Furthermore, the magnetic tapes -- the backup system the IRS uses -- only keeps information for six months before it's written over with new information. In other words, they did a thorough job of "losing" those emails. Meanwhile, ABC and NBC ignored the story while making room for a report that Britain's royal baby, Prince George, was learning how to walk. More...

Lerner Emails (Really) GoneHow green! The IRS recycled former-IRS official Lois Lerner's computer hard drive, making it impossible to retrieve the lost emails that would undoubtedly be another smoking gun on the Tea Party targeting scandal. An IRS spokesman said, "We believe the standard IRS protocol was followed in 2011 for disposing of the broken hard drive. A bad hard drive, like other broken Information Technology equipment, is sent to a recycler as part of our regular process." Furthermore, the magnetic tapes -- the backup system the IRS uses -- only keeps information for six months before it's written over with new information. In other words, they did a thorough job of "losing" those emails. Meanwhile, ABC and NBC ignored the story while making room for a report that Britain's royal baby, Prince George, was learning how to walk. More...For fuller coverage see http://www.politico.com/story/2014/06/irs-lois-lerner-emails-108044.html

The irony (and elephant in the room) is that this is the agency that controls the record keeping of all Americans with its enormous federal powers. It galls me that you have to be a right winger to feel outrage over this.

The IRS is part of the executive branch of the federal government. Over the months they have been trying to hide find the Lois Lerner emails, all the chief executive above them had to do was order all of his government, the White House in particular, to release to the committee their copy of whatever email exchanges with Lois Lerner that they had. Part of his deny, delay, deflect, and divert attention strategy is that: HE DID NOT DO THAT.

This scandal and coverup goes all the way to the top! If the IRS knew for months, he knew for months (or should have know, same thing). Administration of the IRS is part of his sworn responsibilities. He chose to have his White House NOT cooperate with this investigation. Delay as long as possible and then not disclose is not what people thought they were choosing with "the most transparent administration ever".

My latest thought is that the House and Senate should take up impeachment after the 2016 election and before the end of his term, out of principle, leaving not enough time on the clock to swear in the Vice President as his replacement. Appoint the special investigators now, get all the information now, and mark history with the precedent that this country does not tolerate this kind of governance.

Rep. Trey Gowdy (R-SC) hit IRS Commissioner John Koskinen with a question the bureaucrat couldn't answer Monday: "You have already said multiple times today that there was no evidence that you found of any criminal wrongdoing," Gowdy said. "I want you to tell me what criminal statutes you have evaluated." Befuddled, Koskinen replied, "I have not looked at any." Gowdy fired back, "Well then how can you possibly tell our fellow citizens that there's not criminal wrongdoing if you don't even know what statutes to look at?" Gowdy repeated the question, and Koskinen again admitted, "I reviewed no criminal statutes." The only hope for the IRS is smoke and mirrors. We're glad at least Gowdy isn't going to take it.

(Best of the tube tonight: Catch us on "Lou Dobbs Tonight," 7 p.m. ET on Fox Business, with repeat showings at 10 p.m. and 4 a.m.)

In the scandal involving the Internal Revenue Service, the IRS commissioner refused to play along with a corrupt administration, the New York Times reports. A White House aide handed him a list of 200 political "enemies" the president wanted investigated. In response, the commissioner asked: "Do you realize what you're doing?" Then, he answered his own rhetorical question: "If I did what you asked, it'd make Watergate look like a Sunday school picnic."

The White House aide's reply was "emphatic," according to the Times: ""The man I work for doesn't like somebody to say 'no.' "

The commissioner went to his boss, the Treasury secretary, "showed him the list and recommended that the I.R.S. do nothing." The secretary "told him to lock the list in his safe." Later, he retrieved the list and turned it over to congressional investigators.

Johnnie Walters testifies before a Senate subcommittee, March 1973. Corbis

It's enough to restore your trust in the government--except that it happened more than 40 years ago. The corrupt order was delivered by John Dean in September 1972. The commissioner, Johnnie Walters, eventually "testified to various committees investigating alleged Nixon misdeeds," the Times reports. "He left office in April 1973." He died Tuesday; the Times article we've been quoting is his obituary.

Walters wasn't the first IRS commissioner to resist President Nixon's political pressure. His predecessor, Randolph Thrower, was fired "for resisting White House pressure to punish political opponents," as the Times notes. Thrower died this March at 100. When Walters took office in 1971, "his stated goals were simplifying the tax process and catching tax cheats," but his job "had grown more complex" when Nixon imposed wage-and-price controls in an economically ignorant effort to curb inflation.

But the obituarist dryly notes that "Mr. Walters had not been told of Nixon's other job requirements," which surfaced in a recorded Oval Office conversation: "I want to be sure he is a ruthless son of a bitch, that he will do what he's told, that every income-tax return I want to see I see, that he will go after our enemies and not go after our friends." When Nixon learned that Walters had refused to follow the wrongful order, he asked: "Why the hell did we promote him?"

Later, he told the aforementioned White House aide, John Dean: "You've got to kick Walters's ass out first and get a man in there." He added that the Treasury secretary, George Shultz, "needed to make sure that Mr. Walters left if he wanted to keep his own job," in the Times's paraphrase. Shultz remained in office until May 1974, three months before Nixon's resignation, and later served as President Reagan's secretary of state. He's still alive at 93.

As far as we know, even Bill Clinton never said, "Sometimes a cigar is just a cigar."

One group of experts, the International Association of Information Technology Asset Managers, apparently disagrees with Lew and the current IRS commissioner, John Koskinen, as The Weekly Standard's Jim Swift reports:

IAITAM administers internationally accepted certifications for information technology professionals. According to the group's standards, if Lerner's supposedly malfunctioning hardware was properly destroyed, there would be records of it.

Dr. Barbara Rembiesa, president of IAITAM, questions whether there is documentation of the destruction of the files. Who performed the work, says Rembiesa, is important because not all IT professionals are IAITAM certified.

"The notion that these emails just magically vanished makes no sense whatsoever. That is not how IT asset management at major businesses and government institutions works in this country. When the hard drive in question was destroyed, the IRS should have called in an accredited IT Asset Destruction (ITAD) professional or firm to complete that process, which requires extensive documentation, official signoffs, approvals, and signatures of completion. If this was done, there would be records. If this was not done, this is the smoking gun that proves the drive or drives were destroyed improperly – or not at all."

Also on Wednesday, the House Ways and Means Committee released an eyebrow-raising email exchange from December 2012 (that is, postdating the alleged computer crashes). It seems that Lois Lerner, the IRS's since-ousted head of tax-exempt organizations, and Sen. Chuck Grassley, a Republican member of the Senate Finance Committee, were invited to appear together at a conference.

Lerner turned down the invitation, emailing Matthew Giuliano, a lawyer then employed as a manager at the IRS: "Don't think I want to be on stage with Grassley on this issue." (The "issue" and the identity of the conference sponsor are redacted from the email exchange.) But she observed: "Looked like they were inappropriately offering to pay for [Grassley's] wife. Perhaps we should refer to Exam?"

"We have seen a lot of unbelievable things in this investigation, but the fact that Lois Lerner attempted to initiate an apparently baseless IRS examination against a sitting Republican United States Senator is shocking," Ways and Means Chairman Dave Camp said in a press release. "At every turn, Lerner was using the IRS as a tool for political purposes in defiance of taxpayer rights."

Giuliano gingerly replied to Lerner that he was "not sure we should send to exam. I think the offer to pay for Grassley's wife is income to Grassley, and not prohibited on its face."

There's no indication that Lerner pressed the matter further, and the email exchange alone is consistent with the hypothesis that she was an overzealous enforcer but not a partisan one. That is the claim administration apologists have been making, though when you stop and think about it, that means their defense is that the IRS is indiscriminate in opportunistically snooping on private correspondence.

Anyway, everything else we know about Lerner and Obama-era IRS practices argues against that defense. "If this were a Republican administration," former Clinton aide Lanny Davis tells radio host Larry O'Connor, who quotes him in the Washington Free Beacon, "I'd be saying when hard drives have been obliterated and this recent Lois Lerner--I think very inappropriate, maybe innocent but completely inappropriate--'maybe we should look at Mr. Grassley' . . . there's no Democrat that I know of that wouldn't be asking a Republican administration to conduct an independent investigation."

Four decades ago, during a Republican administration that was brought down by corruption, the IRS turned out to be a bulwark of government integrity. Today the possibility remains that the IRS itself is the source of the corruption. As we've repeatedly argued, that would be even worse than an IRS that follows corrupt orders from the president. A corrupt administration can be replaced, as Nixon's was. It's harder to see what can be done if a vital and permanent institution of the administrative state has been corrupted.

"and those who have protected those officials — need to be removed from office now, not two or three years from now when we may finally have a scrupulous attorney general. This is why the Constitution’s impeachment clause makes clear that the political process of removing malfeasant officials from power provides no double-jeopardy protection against a later criminal prosecution for the same misconduct"

"and those who have protected those officials — need to be removed from office now, not two or three years from now when we may finally have a scrupulous attorney general. This is why the Constitution’s impeachment clause makes clear that the political process of removing malfeasant officials from power provides no double-jeopardy protection against a later criminal prosecution for the same misconduct"

It would die in the Senate, yes, but if they take their responsibilities seriously it would require them to take it up seriously in a trial and conduct a vote. If done before the election, there are several hot-seat Dems who would have to give it careful consideration, Landreau, Begich, Hagan, Prior? And there are others who may be sick and tired of this administration bringing down the good name of transparency and liberalism, lol. After the election it still cannot be done on a party line vote. As intended, impeachment of anyone requires significant support from both sides.

The impeachment proceedings would cause SOME press coverage of the case against them, and the trial in the Senate could get quite testy. )

This is all time and energy not devoted to the administration's transformation project so in that sense we all win no matter the outcome.

Obviously if R's bring a weak case and get no crossover support it could easily backfire on them too, like budget showdowns, etc.

I disagree with Andrew McCarthy. They are not willing to de-fund or impeach so compare blowing the whistle only with not blowing the whistle. What he does not say with certainty is that this will fail on standing. The lawsuit keeps the over reaches of power in the news. McCarthy says correctly, this is about public opinion.

I can envision it failing for reasons other than standing with a practical result of giving Obama a chance to pretend his lawless rampage has been upheld.

If the Reps can't make the case for defunding in the court of public opinion, how can they succeed in an effort to take it to SCOTUS? Do we want SCOTUS as the arbiter of these things? What if Hillary is elected and she gets to appoint some justices? We'll be fuct.

I wish I had the time to read McCarthy's book on the case for impeachment. Anyone here know of any serious reviews of it?

THE BOEHNER LAWSUIT AGAINST OBAMA IS BEGINNING TO TAKE SHAPEThe Boehner Lawsuit Against Obama Is Beginning to Take ShapeA vote on the resolution to authorize the legal action is set for the week before August break.

July 8, 2014Starting next week, House Republicans will launch a highly visible—and likely tumultuous—three-week process of bringing to the floor legislation to authorize their promised lawsuit against President Obama over his use of executive actions.

"In theory, you could report out a resolution tomorrow and vote on it," said a House GOP aide on Tuesday. "But that is not the approach [the leaders] want to take."

Rather, the aim is to display—if not actually engage in—a more deliberative process, even if amid controversy. This drawn-out script builds toward a potentially dramatic floor vote held just days, or even hours, before the House adjourns on July 31 for its August-long summer break. more at link)

Personally, while I think it would be highly satisfying to me personally as a conservative, I hope that conservatives WON'T try to impeach Obama. My own preference is that they simply attempt to turn him into a post-November lame duck legislatively (presuming that conservatives get enough seats back to overide a veto). My reason being that O still has a... let's just say 'zealous' in the religious sense of the word... 25-40% base that is going to become very, very (very) galvanized if Conservatives make that move, either after, or especially, before November.

Please don't misconstrue-- I think this president is an overt liar, he is a terrible president, he is actively trying to sink the country, and he is ENTIRELY impeachable, quality wise. I just think it would be a bad idea.... imagine how twirled up the media will get about it. It will just pour political gas on the fire, whereas I think Obama can be just as effectively neutered legislatively, *assuming* conservatives gain that super majority. A two-year impeachment trial portrayed for that duration by MSNBC as 'white racist conservatives gunning for the black guy' every night on the news running up to 2016 is a mistake.

Eric Holder, now, HIM I hope they tar and feather after November. I understand that he is also impeachable. ( ) If Conservatives win back the Congress, I will wager a digital beer that he simply resigns in the face of what is likely to be a very swift campaign to unseat him.

Politically I'm thinking it would be a bridge too far, even though both he and the nation thoroughly deserve it.

For one thing, we don't have direct proof tying the President to some of the worst offenses. Hard to say if willful neglect in governing equals high crimes and misdemeanors.

Impeachment is a political solution that would fail, install Biden as President if successful, and most certainly backfire on Republicans.

Republicans have a public perception problem. They need to be seen as relentlessly advancing real solutions to real problems - every time they get a camera or microphone to their podium. They need to change hearts and minds and they need to win races.

People are seeing how bad Democratic policies and governing can be, but haven't fully jumped over to conservative governing principles. This is an enormous and historic opportunity to win people over and change directions. The over-reaches of power and lawless governing are abominable, but side issues to being on the wrong track headed the wrong direction.

We won't impeach, but if we did, what would be the articles of impeachment against him? Will anyone add, correct or fill in details to make the case:

1) Fast and Furious, what exactly are we charging them with doing there?

2) IRS Targeting, applying the laws and enforcement mechanism unequally under the law with the intention of stifling opposition gaining unfair advantage in the election.

3) A long list of 'passing' laws by administrative decree when he couldn't get the votes to pass in congress, as required by the constitution. EPA rules, for one example. Removing the work requirement for welfare, for another.

We have met the enemy and he is us. Yesterday, in a series of hits as operatic and brutal as the last 15 minutes of the Godfather, the government effectively made inversion through corporate merger an offense punishable by corporate death.

Using the threat of an unlimited Treasury investigation, the President and Senator Dick Durbin stopped Walgreen ( WAG) from moving to Switzerland. The wreckage of some $10 billion in lost stock value for mostly Main Street investors was left as a grim reminder not to cross the government by, in this case, following the letter of our own stupid laws.

This is a mighty fine way to discourage foreign as well as domestic entrepreneurs from founding and keeping companies in the USA. Think about it -- "Using the threat of an unlimited Treasury investigation". This is becoming the standard modus operandi -- remember the IRS "investigations" of political activists.

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other friends comment:

Absolutely consistent with every other Federal policy, foreign and domestic. The US government is not only a colossus now, but has become a bully. It's acting more and more like an organized criminal enterprise.

We can also see, now, how a democracy gives us essentially zero control over the government machine. Hans-Hermann Hoppe argues that democracy tends to increase the power of government and ultimately ensures that we have the worst societal members in positions of power. See http://mises.org/misesreview_detail.aspx?control=199

Obamacare was arguably the most stupid thing the Obama administration has done to date. Trying to stop corporate inversions might be the second most stupid thing. Not only are the Dems showing themselves to be very anti-business, they are displaying supreme ignorance of how business and taxation interact. Instead of trying to stop inversions they should simply fix the tax code. But no, they want to force things to work their way, giving top priority to government's claim on profits. This will keep the economy weaker than it otherwise could have been for the next few years.

The revelation that Centers for Medicare & Medicaid Services administrator Marilynn Tavenner did not retain her e-mails means that more than 20 witness in the Obama administration to lose or delete e-mails without notifying Congress, according to the top House investigator.

“The Obama administration has lost or destroyed e-mails for more than 20 witnesses, and in each case, the loss wasn’t disclosed to the National Archives or Congress for months or years, in violation of federal law,” House Oversight and Government Reform Committee chairman Darrell Issa (R., Calif.) said of Tavenner’s lost e-mails.

“It defies logic that so many senior Administration officials were found to have ignored federal recordkeeping requirements only after Congress asked to see their e-mails,” he continued. “Just this week, my staff followed up with HHS, who has failed to comply with a subpoena from ten months ago. Even at that point, the administration did not inform us that there was a problem with Ms. Tavenner’s e-mail history. Yet again, we discover that this administration will not be forthright with the American people unless cornered.”

From February of 2010 to November of 2013 — one month after the launch of the HealthCare.gov website, as the Daily Caller’s Patrick Howley noted — Tavenner didn’t maintain copies of her e-mails as required.

“During her entire tenure at CMS, Ms. Tavenner’s CMS e-mail address, which is accessible to both colleagues and the public, has been subject to write-in campaigns involving thousands of e-mails from the public,” CMS wrote to the National Archives and Records Administration, per Howley.

“Therefore, she receives an extremely high volume of e-mails that she manages daily. To keep an orderly e-mail box and to stay within the agency’s e-mail system capacity limits, the administrator generally copied or forwarded e-mails to immediate staff for retention and retrieval, and did not maintain her own copies,” CMS said.

Issa subpoenaed the missing e-mails ten months ago. “The evidence is mounting that the website did not go through proper testing, including critical security testing, and that the Administration ignored repeated warnings from contractors about ongoing problems,” he said at the time. “The American people deserve to know why the administration spent significant taxpayer money on a product that is entirely dysfunctional and puts their personal information at risk.”